19 September 2019

Will the Supreme Court ruling make any difference to Brexit?

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Today the Supreme Court will retire to consider whether the Prime Minister misled the Queen and unlawfully prorogued Parliament. Whether you think this will be the climax of ‘the trial of the century’ or a full stop to an interminably long legal sentence, the ruling will reveal much about the usually hidden mechanisms of our constitution, and will point to whether the balance of power in our constitution has shifted, American-style, from Parliament to the judiciary. Is there a higher authority than Parliament or is the executive, resting on the confidence of the legislature, still supreme?

But while such questions are of profound importance – better left to finer legal minds than mine – it is worth stepping back and asking what impact this will really have on the Brexit battle consuming our politics. The answer, I think, will be ‘very little’.

Let’s assume for a moment that the Government win the case – the Prime Minister was within his rights to prorogue Parliament, bringing to an end the longest session since the Civil War, in order to hold a Queen’s Speech after conference recess.

In this instance due process will have been done. The constitution will perhaps be bruised but will be confirmed as fundamentally robust. The checks to power were deployed, and decided that Parliament will remain shut, and much ink will be spilled decrying it.

Now let’s assume the Government loses the case. Again, due process will have been done, the constitution tested and the courts will have provided a check on executive power (we can debate whether that is their historic role, or whether it should be their contemporary role, but that is where we will be). Parliament will, presumably, return for the 3-8 days it was prorogued outside of the normal suspension for conference season.

What then? The return to Parliament will allow MPs to continue scrutinising legislation already in train (with particularly important work on being done on Northern Ireland’s governance). But in the context of the Brexit battle – which, let’s face it, is what this is about in practical terms – what will these extra days be used for?

If you want to stop Brexit, the return to Parliament won’t help as the numbers just aren’t there to vote through Revoke or a second referendum (and anyway, how would one be tabled unless by the Government or the legislature taking over the timetable, which now that an extension has been mandated is highly unlikely?).

If you want to prevent No Deal in October, the return to Parliament won’t help. Why? The Remain Alliance has already passed their legislation blocking No Deal in October. This legislation forces Boris Johnson to ask the EU for an extension on Oct 19th (if a deal hasn’t been passed beforehand). Ironically it was the threat of prorogation that proved the catalyst the Remain Alliance needed to get its act together, stop squabbling, reach out to pro-deal Tories and secure what they wanted. In the extra few days Parliament would sit for if it returned, the Remain Alliance would have no obvious moves to make. The ball is no longer in their court, and if they tried to use the extra days to pass further no No Deal legislation it would be an odd admission of their original legislation’s inadequacy.

The only way to prevent No Deal for sure is to vote for a deal. The suggestion is the Government will bring whatever deal it manages to secure back to Parliament in the final days before the PM is forced to ask for an extension on 19th October – namely, after the period of prorogation. So the return to Parliament won’t allow you to vote through a deal either.

And finally, if you want to ram Brexit through by forcing a No Deal exit, the return to Parliament doesn’t help you, but it doesn’t destroy your strategy either. In all likelihood, whether you want a second referendum, a Brexit Deal, No Deal or Revoke, you’re going to need a general election, in order to shift the arithmetic in the House in your favour.

MPs have been offered this already. They rejected it. Until Boris Johnson asks for the extension the House has told him he must, they will keep rejecting the the chance of going to the people (making a mockery of the cries from some MPs that we’re living through a ‘coup’).

So with regard to short-term tactics, I suspect the court ruling will have little effect. We need a general election; we still will need a general election.

There will, however, be an effect on medium-term strategy, but it will be to further entrench the key Brexit messages already being spun out in preparation for an election.

Ever since Boris Johnson became Prime Minister, Labour and Lib Dem attack lines have centred on his character. The Scottish Court ruling against the Government – and the mere fact the Supreme Court had to be involved at all – will be welcomed by the Opposition to bolster claims Boris is reckless, is dangerous, is a vandal the public can’t trust.

For the Conservatives, the court case might also be welcomed. Boris Johnson has already tried to stage a ‘People versus Parliament’ election. Now “unelected judges” can be thrown into the mix. A trip to court certainly won’t harm the narrative of an ‘elite remainer’ sect trying to stop Brexit.

In such an election, the ruling of the courts will be weaponised by both sides. Die-hard Leavers will see the courts trying to defy the sacred will of the people; die-hard Remainers will see the caddish double act of Boris and Dom trying to dupe them once again. One side will demand a No Deal exit, the other a referendum (in order to Remain) or outright revocation. Both moves are straight from the populist playbook in that they seek to energise their base by outraging their opponents.

The gamble is that in the end, most people don’t care about process, they care about outcome. And the court’s outcome is unlikely to change much in the short-term.

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Frank Lawton is the Assistant Editor of CapX